Wednesday, March 21, 2007

Show Trials & Fall Guys

One would think that an Administration that has tried at every turn to substitute unreviewable military tribunals for regularly constituted courts in its foreign policy would be skittish about using the term "show trials," especially in a week in which the confession of Walid Muhammad bin Attash to the bombing of the USS Cole was subject to uncertainty due to lingering concerns that it was the product of abusive treatment during his time in CIA custody. Yet there was the President yesterday warning Congressional Democrats not "to head down the partisan road of issuing subpoenas and demanding show trials" in their investigation into the facts of the Gonzales Eight Massacre. And that was in the prepared portion of his remarks.

The President offered what he called a "reasonable way to avoid an impasse." Attorney General Gonzales would testify before Congress, while White House staff, presumably including Karl Rove, would meet with members of Congress in private without taking an oath. In what sense would it be a "show trial" for Rove to go before Congress in public and under oath? The oath can't make a difference but appearing in public certainly could. Bush fears that Democrats would simply use Rove as a whipping boy. But if that's the worry, why isn't there the same worry about Gonzales? Perhaps Bush has more confidence in the ability of Gonzales to deflect Senators' questions, based on past experience. Or perhaps, more darkly, Gonzales is the designated fall guy for this scandal, and sending him up to the Hill for a "show trial" keeps the attention on Gonzales rather than Rove or Bush.

One other possibility is that Bush (or Cheney or someone else advising Bush on these matters) actually believes in the principle he has been citing. That principle, recall, is that the President needs to be able to receive candid advice from White House staff, and that public testimony undermines the incentive towards private candor. But this explanation doesn't wash because disclosure of the emails --- which has already occurred --- has the exact same impact. Given the content of the emails disclosed, there is no way that their authors thought they would ever be read outside of the White House (except perhaps by historians decades later). Here, as in other contexts in which Presidents have invoked executive privilege or its rationale, the invocation is selective, thus undermining the underlying principle. Accordingly, for now I'm going with the Gonzales-as-fall-guy theory. If Gonzales does join Libby in that category, then the Administration may soon have to start worrying about running out of fall guys.

10 comments:

I seem to recall that in the NSA ruling last year (Detroit judge?) the government tried to make a "state privileges" claim in defending the program. But because so much was already known publicly, the judge ruled against it.

Is there a rough equivalent through precedent in the "executive privilege" realm -- where public exposure effectively nullifies the justification for keeping matters away from Congress? Or is that something different like attorney / client privilege?

Flip-flopping based on who owns the power seat is certainly common in American politics, but it's hypocritical nontheless. Many Congressional Republicans are erring on the executive privilege side in this debate. But I wonder if any of them are the same folks who were on the other side in 1998.

Today's WAPO:

The most likely comparison to the current showdown came in 1998, when the GOP-run Government Reform and Oversight Committee, as the panel was then known, voted along party lines to cite then-Attorney General Janet Reno as being in contempt of Congress for her refusal to turn over internal Justice Department memos regarding a sprawling campaign finance investigation. The Justice Department then offered a staff briefing on the memos, and the House never acted on the contempt citation.

"Flip-flopping based on who owns the power seat is certainly common in American politics, but it's hypocritical nontheless."

Is it flip-flopping, or is it acquiescence to precedent?

I ask this with more of a prospective view to judicial filibusters rather than retrospectively. As we all know, Republicans advocated the "nuclear option" of re-writing Senate rules to ban filibusters of judicial appointees, and Democrats opposed that option. We have everyone on record, so the next time we have a Dem president and a Republican Senate, the issue will almost certainly come up, and those who are on record will all be called flip-floppers. Republicans who formerly opposed judicial filibusters will want to filibuster the Dem nominees, and Dems who formerly supported judicial filibusters will want to oppose them.

The reality is that we had a showdown and the Republicans essentially lost. This set a precedent -- apparently it is okay now, based on established tradition, to filibuster a judicial nominee. And yet that fact won't immunize any Republican who accepts that new rule and tries to play by it.